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United States v. Carr

United States District Court, D. Maryland

September 30, 2016

DARRIUS CARR, Defendant.


          Ellen L. Hollander United States District Judge.

         In this Memorandum, the Court resolves the Motion filed by Darrius Carr under 28 U.S.C. § 2255, seeking to vacate, set aside or correct his sentence (the “Petition”). ECF 41. The government has filed a response in opposition to the Petition. ECF 47 (“Opposition”). Petitioner has not replied, and the time to do so has expired.

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and records of the case conclusively show the prisoner is entitled to no relief . . . .” This is such a case. No hearing is necessary. For the reasons that follow, I shall deny the Petition.

         I. Procedural and Factual Background

         Darrius Carr was charged on June 17, 2015, in a three-count indictment with the offenses of production of child pornography, in violation of 18 U.S.C. § 2251(a) (Counts One and Two), and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count Three). The Indictment pertained to the defendant's sexual abuse and production of child pornography with respect to a young female child who was in his care, as well as the production and distribution of child pornography. Throughout the course of the proceedings, the defendant was represented by a seasoned attorney with the Office of the Federal Public Defender.

         On November 19, 2014, the defendant entered a plea of guilty to Count One of the indictment (production of child pornography), in violation of 18 U.S.C. § 2251(a). See ECF 25; ECF 47-1 (guilty plea transcript). The plea was entered in connection with a Plea Agreement executed by Mr. Carr. ECF 20. Pursuant to the Plea Agreement, and under Rule 11(c)(1)(C), the parties stipulated to a sentence of 300 months of incarceration. See ECF 20 ¶ 11. As set forth in ¶¶ 6, 7, and 8 of the Plea Agreement (ECF 20), the parties anticipated a final offense level of 45, which took into account related conduct and three deductions for acceptance of responsibility.

         The Plea Agreement included as Attachment A a stipulated Statement of Facts. See ECF 26. The Statement of Facts indicated, inter alia, that on both March 7 and March 11 of 2014, Carr was left alone with a female child, who was then almost three years of age. During that time, Carr produced a series of photographs and a video of himself and the child, focusing on the child's vagina and anus, and depicting him touching the child's genitals. In addition, in one video, Carr performed oral sex on the child.

         In anticipation of sentencing, the probation office prepared a Presentence Report (“PSR”). ECF 28. In addition, counsel for Mr. Carr submitted a Sentencing Memorandum. ECF 27.

         According to the PSR, after deductions for acceptance of responsibility, Carr had an offense level of 45. At the sentencing on January 26, 2015, there were no disputes regarding the calculation of the sentencing guidelines. See ECF 46 (Sentencing Transcript); see also ECF 47-3 (same). The court determined that Carr had a final offense level of 45 (ECF 46 at 10) and that he had a criminal history category of III. Id. at 11. With an offense level of 45 and a criminal history category of III, the defendant's advisory sentencing guideline range called for life imprisonment. However, the offense of conviction carries a maximum period of incarceration of 30 years for the single count to which the defendant entered a plea of guilty. Therefore, the guideline range was thirty years' incarceration. And, consistent with the “C plea, ” the Court imposed the agreed upon sentence of 25 years of incarceration, followed by a lifetime of supervised release. See ECF 32; ECF 33. Carr did not file a direct appeal to the Fourth Circuit.

         II. Discussion

         Carr was born in 1992. ECF 28 at 2. In his Petition, Carr argues that he received ineffective assistance of counsel. In particular, he complains that his lawyer “did not fully explain plea agreement and threatened [him] with additional time if [he] had chosen to go to trial.” ECF 41 at 4. Further, he asserts: “Counsel did not defend [him] in the charge and conviction of aiding and abetting which is NOT part of Count One of Indictment.” Id. In addition, Carr claims: “Counsel refused [his] request to petition Court for mental evaluation when there is clear history of mental issues.” And, Carr asserts: “Counsel flatly refused to defend me other than to demand I plead out.” Id. Carr also complains that his sentence of 300 months “is excessive and discordant in the interest of justice.” Id. at 5. He adds that the sentence “does go beyond what is reasonable punishment to serve the purpose of public safety.” Id. In his view, the sentence is disparate and “shows the propensity for unfairness and discretional abuse . . . . Considering that this is Petitioner's first offense twenty-five (25) years does not fit the crime.” Id.

         Finally, Carr asserts that “mitigating circumstances [were] not considered.” Id. at 7. In this regard, he maintains that the victim was only two years of age at the time, and thus “had no cognizant memory of the event.”[1] He adds: “While Petitioner takes full responsibility for his actions, the mitigating circumstances argue against a sentence of 25 years because there was no true victim impact. The Petitioner did not share or distribute the photos and/or videos with anyone [and] the victim has suffered no harm . . . .” Id.

         Section 2255(a) of Title 28 of the United States Code, under which Carr filed his Petition, provides relief to prisoners in federal custody only on specific grounds: that the sentence was imposed in violation of the Constitution or laws of the United States; that the court was without jurisdiction to impose such a sentence; that the sentence was in excess of the maximum authorized by law; or that the sentence is otherwise subject to collateral attack. In reviewing the Petition, the Court is mindful that a self-represented litigant is generally “held to a ‘less stringent standard[ ]' than is a lawyer, and the Court must liberally construe his claims, no matter how ‘inartfully' pled.” Morrison v. United States, Crim. No. RDB-10-0507; 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 Fed. App'x. 332, 334 (4th Cir. 2013) (same).

         Carr contends that he received ineffective assistance of trial counsel, which, if so, would constitute a violation of his rights under the Sixth Amendment. The right to effective assistance of counsel is a well recognized basis for relief under § 2255. See generally Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). To challenge successfully a sentence of imprisonment under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington,466 U.S. 668, 687-88 (1984). See Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1107-8 (2013); Roev. Flores-Ortega, 528 U.S. 470, 477 (2000); Lafler, 132 S.Ct. at 1384; Hill v. Lockhart,474 U.S. 52 (1985); United States v. ...

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